Mine safety rule for methane risk delayed again

CHARLESTON, W.Va. -- A regulation to implement a key portion of Gov. Earl Ray Tomblin's year-old mine safety legislation won't be submitted for final legislative approval until at least 2015, officials said Tuesday.

The Board of Coal Mine Health and Safety allowed its proposed rule to expire without finalizing it -- a move that means board members must essentially start the process over from the beginning.

"The proposal is expired, so we have to re-propose that rule," board administrator Joel Watts told board members during a meeting in Charleston.

Watts said that means whatever final rule the board eventually comes up with won't be submitted to lawmakers next year and would have to wait until the 2015 session for legislative approval.

The rules at issue are needed to allow the Office of Miners' Health, Safety and Training to enforce a tightening of the state's requirement for mining equipment to be automatically shut off when the explosive gas methane is detected underground.

Under the governor's bill, the mine safety board -- made up of industry and labor representatives appointed by the governor -- was supposed to issue the rules by October 2012.

Board members had the matter on their agenda for Tuesday's meeting, but other than the comments from Watts, they did not discuss it or take any sort of action.

The delay is another setback for the Tomblin administration's mine safety initiatives, which have met with a variety of problems since the Legislature passed and the governor signed into law new legislation in early 2012.

The methane requirements are part of legislation supported by the governor, lawmakers, industry and labor. The legislation was billed as a response to the disaster at the former Massey Energy Upper Big Branch Mine. On April 5, 2010, a small methane ignition at Upper Big Branch grew into a huge coal-dust-fueled explosion. Twenty-nine miners died, making it the worst U.S. coal-mining disaster in nearly 40 years.

Generally, coal operators are required to monitor underground mines for methane, which can explode when it is present in an amount between 5 percent and 15 percent of the air. Under federal rules, methane monitors are designed to automatically shut down underground mining equipment if the explosive gas is detected at concentrations of 2 percent or greater. The idea is that shutting down mining equipment removes a potential source of a spark that could ignite methane and cause a catastrophic explosion.

Initially, under legislation introduced last year by Democratic House of Delegates leaders, coal-cutting devices on mining equipment would be required to automatically shut down when methane concentrations reached 1.25 percent.

During negotiations with coal industry and UMW lobbyists, the language was rewritten so that the automatic shutdown would occur only if methane concentrations reached 1.25 percent for a "sustained period."

Lawmakers required the Board of Coal Mine Health and Safety to write rules to define the phrase "sustained period."

Board members have for months been unable to agree on a definition of "sustained period." UMW officials want to define it to require an immediate shutdown when methane reaches 1.25 percent. Industry officials want to build in some lag time, even if it's only a few seconds.

Since the legislation passed, industry officials also said that they discovered that all machine-mounted methane monitors would have to be redesigned and re-approved by the U.S. Mine Safety and Health Administration before the new law could be implemented. That approval process alone could take more than a year, officials have said, meaning it could be two to three years before the new monitoring requirements are implemented across the industry.

In late March, the board issued a draft rule for public comment, but did not specify a definition of "sustained period," asking instead for ideas from the mining community for how to define the term.

The only comment submitted came from board member Chris Hamilton, vice president of the West Virginia Coal Association.

On July 31, the Secretary of State's Office filed a formal notice that the board's proposal had expired, because the board had waited more than 90 days and still not filed a final rule with the Legislative Rulemaking Review Committee.

"If you want to continue the rule making process on this rule, you must resubmit the entire rule and associated forms with the Secretary of State for another hearing/public comment period," the notice said.